I am trying to file for a divorce. We have been separated since Feb. 27,2011. We have a son but we do not have custody of him. Our son was born on Jan. 8, 2011. Just wondering how to i go about getting a divorce since neither one of us have custody of our son his parents(my soon to be ex husband) do.
Unless your parental rights have been terminated (by state or by adoption of the child), then you still technically have a minor child born of the marriage (even though the child is not in either party's custody). Accordingly, I believe that you will need to wait out the one year separation period to file for an uncontested divorce (which, in your case, would be on or after Feb. 28, 2012). The fastest, easiest, and least expensive way to proceed would be to have an attorney prepare a written settlement agreement (resolving property and suppport issues and at least stating why custody and visitation provisions are not at issue and what the terms of any current custody and child support orders are or making reference to that order). Once you and your spouse have both signed the agreement (please note, however that the attorney can only "represent" one of you; the other spouse will either need to consult their own attorney or opt not to have an attorney) and the one year date is reached, then the attorney can the file complaint for divorce, have it served (or get waiver of service), wait the 21 days for expiration of the responsive filings period, then proceed to schedule a divorce deposition (or ore tenus hearing, depending on the rules of your local jurisdiction), prepare the final decree, and once decree is signed by everyone, submit it to the court with the deposition (or at ore tenus) together with the original settlement agreement and the final decree entered by the court.
You can try to contact the Clerk's office of the Circuit Court where you live, and ask if they have any kind of 'forms packet' for a 'pro se divorce'. IF they do, then you can use that to create your own pleadings, but remember, Clerks cannot give legal advice. If you and your spouse are in agreement as to the division of everything, including retirement benefits (you keep yours, your spouse keeps your spouse's) then you can type that up, have a notary public notarize EACH of your signatures, and then that would be filed with the Court.
Not all Circuit Courts are 'pro se friendly', so if the Clerk tells you they don't have such a thing, then that is it as far as they are concerned.
You can go to your local public Law Library (again, NOT all counties have a Bar Library which is operated by the local Bar Association, but if not, your local public library will have some, limited items) to see if you can access their 'domestic relations pro se section.' There are form books for the pleadings you need to file with the Court.
It's not an easy thing for a non-lawyer to do, although it can be done.
If there was a termination of parental rights (NOT just primary physical/legal custody awarded to your inlaws) then you can file for divorce now: if it wasn't a Termination, then you must wait for the full year before you can file for divorce, although you can certainly write up the Marital Separation Agreement between now and then, and get all of your information together so that you can file for the divorce as soon as the one year has run.
You can go about getting a divorce by hiring a good divorce attorney in your local area. There is no other way anyone on this forum can provide all of the details you would need to file for a divorce. There are a lot of particulars involved and you need to sit down with a qualified divorce attorney. Trying to do it cheap, without an attorney, can cost you a lot more in the long run.
Most money is wasted in a divorce because the parties want to bicker and argue and continue the disharmony which dissolved the marriage in the first place, but now they are paying lawyers to do the fighting for them. Remember you once loved this person enough to get married, and you have a child together that will link you for the rest of your lives.
The best way to get a divorce quick, easy and cheap is to sit down with your spouse and work out the issues for the divorce. Decide how to divide property and debt. Decide what if any support each of you need from the other and are willing to provide. Decide how the child's needs will be met. You don't have custody, but you may still have an obligation to support him depending on local law.
Then contact a good divorce attorney. Attend divorce court and watch how a few of the attorney's conduct themselves. Then approach them as they are leaving court after a case (not during their work) and ask for a card and if they are accepting new clients. Ask friends and co-workers if they have any attorney referrals. If someone offers you a rock bottom price, remember you are probably going to get rock bottom service. You should get a fair hourly fee. I don't know any reputable attorneys who can do divorces for a fixed fee because there are so many variables and unforeseeable issues that crop up during the divorce process.
Tell the attorney your agreement, and they will let you know if there are any areas you missed, or agreements you have reached which the court will allow. (there are usually minimal child support requirements that must be met.) You can then discuss these with your spouse again and reach an agreement. The attorneys don't need to fight unless the spouses decide to do it. The "Do it yourself" divorces are not worth the money they save. You will likely find yourself constantly worrying about if you did something right or not (served proper notice to the opposing party), and after 6 or more months of waiting (the waiting period in some states before a divorce can be granted), find that because of an error you have to start over. Or some issue gets left out and you have to deal with it 2 or 3 years later (like retirement accounts were not distributed as a marital asset).
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